Education

The Specter Of Bush v. Gore Haunts The 2020 Election


Here we go again. In 2000 it was clear that the Republican candidate had lost the popular vote, but the election turned on who won Florida. The margin in that state was razor-thin and there was a recount of the votes. In the much-jeered decision, Bush v. Gore, the United States Supreme Court stopped the recount. It held that the inconsistent manner of deciding which ballots were valid violated the equal protection clause because things like “hanging chads” would count in one part of the state but not another. Because the decision came so late in the process, it effectively declared George W. Bush the winner of the Florida vote and, therefore, of the national election.

How might this play out in 2020? As of now, the most realistic path for Biden to win the necessary 270 electoral votes would be if he wins Michigan, Arizona, and Nevada. He is ahead by tiny margins in all three states and winning them would get him to exactly 270 electoral votes. He has other paths, but all of those involve states in which he is currently behind.

For clarity, this piece will focus on the Nevada race. At the time of this writing, Biden was ahead by six-tenths of a percent of the overall vote, so the result will obviously be very close. Under Nevada law, either candidate will have an absolute right to demand a recount.

 Under Nevada law, any recount will be done by “recount boards” appointed by the county clerk for each county. With all of the confusion created by COVID, there will doubtless be many opportunities to challenge ballot recounts by these boards for various reasons. The Trump campaign has already brought a lawsuit against the Nevada Secretary of State challenging, among other things, the use of artificial intelligence to authenticate ballot signatures. The suit was rejected because the Republicans were not able to produce any evidence of wrongdoing, but they will surely try again. It would be a miracle if there were no discrepancies at all in how the various recount boards decided which ballots were valid or invalid. And, under Nevada law, both candidates are entitled to have representatives present at the recount boards to look out for any irregularities. Surely, these highly motivated observers will find differences in the way that the different recount boards count the ballots. 

Because Bush v. Gore was far from clear about what sort of discrepancies are enough to violate the equal protection clause, challenges to the Nevada recount will probably work their way to the Supreme Court. Few of the current Justices were on the Court when Bush v. Gore was decided. There is no indication of the newest Justice, Amy Coney Barrett’s, views on these matters. 

 The Justices are surely aware of the ignominy that was heaped on the Court after Bush v. Gore. A leading political journal offered one of the tamer critiques of the decision, calling it a “disgrace.” A leading commentator argued that the only way the decision might have been justified would be if the case had been called “Bush v. Hitler.” Another constitutional scholar called the Supreme Court majority responsible for the decision “absolute, utter, contemptible fools.” Alan Dershowitz, a Harvard law professor and perhaps the best known legal scholar in the country, none to subtly titled his book on the decision Supreme Injustice: How the Court Hijacked Election 2000. Even the more polite critics of the decision have described it as “astonishingly egregious,” among other things.

Hopefully, the Court has learned from that experience. Especially given the controversies regarding the confirmations of Justices Coney Barrett and Brett Kavanaugh, the last thing this country needs is a Supreme Court decision deciding the election in a partisan vote based on widely criticized grounds.

 



READ NEWS SOURCE

This website uses cookies. By continuing to use this site, you accept our use of cookies.